Supremacy of Economic over Constitutional Mandate

Abishek Nippani

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This post is part of our Symposium on Law and Political Economy in India After Covid.


Amidst the turmoil created by the ongoing pandemic, what is often found missing from public discourse – and one could argue deliberately – is the manner in which the real culprit goes unnoticed. Deliberations have chiefly, and self-righteously, carved out the real problem as the COVID-19 virus. This fault attribution is blatantly erroneous, or rather, it is as accurate as labelling the assassination of Archduke Franz Ferdinand as the cause of World War I. Despite the worldview one might subscribe to, one cannot deny the validity of the foregoing statement as its truth resides in the objective world, and counter-narrative is nothing but specious. The present pandemic has simply revealed to us existing structural defects under the surface tension held up by commercial grind and daily commotion. These structural defects are not mere happenstance and are a direct result of the development trajectory India has been following, with the gait on this trajectory having only accelerated post liberalisation.

This development trajectory has not only promoted, but is entirely conditional on the State[1] retreating from areas wherein the market will supposedly fare better. Adverse outcomes – of relevance in relation to the ongoing pandemic – have been, inter alia, the privatisation of healthcare, zilch job security and social security, and apartheidist urban planning in metropolitans which have in toto had the effect of the State breaching its end of the deal in the social contract.

In an attempt to gain a better understanding of the developmental trajectory the Indian State has been following, this essay explores aspects associated with the Constitutional vision of development.

At the time of Indian independence, the relation between people and the State had radically transformed – people went from being ruled to collectively ruling.  The new State was faced with a behemoth task, namely, of reversing, or even nullifying, the extent of economic and social damage inflicted upon Indian population. The Constitution of India, 1949 (‘Constitution’), sought to codify the aspirations of all sections of the society, from the privileged to the impoverished. Being born out of a freedom struggle, the Constitution clearly embodies the values and desires reflected by this struggle, which unlike traditional Constitutions that draw up a framework to regulate and maintain order, actively commands the State machinery to intervene and ameliorate the living conditions of the less fortunate. The Constitution, while propagating the spirit of individualism through fundamental rights enshrined in Part III, placed obligations under Part IV on the State to weed out inequality in all its forms and actively work towards a society pillared on fairness. To gain a better understanding of the political economy of India, we must analyse the relationship between the ‘Constitutional vision of development’ vis the developmental framework in place, and to check if any repugnancy exists.


Constitutional Vision

Though the intent of the Constitution in regards to development can be deciphered through a plain reading of three specific tenets, namely, the Preamble, Part III and Part IV rights, the deliberative process preceding the Constitution helps reveal the direction the framers of the Constitution anticipated. The Constituent Assembly Debates (‘CAD’) is a rich resource to help understand the political economy of India, as it highlights a range of ideologies, from anarchistic-socialism to anarchist to capitalist.

An overwhelming majority of members of the CAD had contended that independence needs to be realised in three forms, political, economic and social. The discord between political independence on one hand, and socio-economic independence on the other, was put forth by Nehru[2] when he said

…democracy is only a top dressing on the Indian soil which is essentially undemocratic … on the social plane we have in India a society based on the principle of graded inequality which means elevation for some and degradation for others. On the economic plane we have a society in which there are some who have immense wealth as against many who live in abject poverty[3]

While it is well-known that Nehru was a strong proponent of socialism and public ownership of critical means of production, Ambedkar too vehemently emphasised on the importance of State ownership of ‘key industries’ and ‘basic industries’. Apart from State ownership of industries, Ambedkar strongly opposed private ownership of agricultural land and had advocated for agriculture to be restructured along the lines of collective farming and need-based production (Ambedkar 1945).

At the time of independence, social and economic relations were still predicated on the lines of a feudal society. While political integration of the population helped alleviate alienation to one extent, the feudal base structure of the Indian economy and its shortcomings cannot be negated by extensively focusing on relations in the superstructure, such as political participation. The creative process required to transform India from a caste-based society to a class-based one bedevilled, and continues to bedevil, all who are resolved to reform the Indian society. The Constitution framers, understanding this problem, conferred rights and obligations in order to realise socio-economic goals. To this effect, the Preamble, Part III, Part IV of the Constitution, and early Planning Commission objectives provide important insight.

Constitution – Preamble, Part III and Part IV

The Preamble signifies the terms of the social contract that we enter into when we arrive in India through a mere accident of birth. As mentioned earlier, emphasis on the fig leaf of political liberation has relegated socio-economic justice to a lower priority.

If the issue under consideration pertained to the model of economic development as envisioned by the Constitution, the same would not warrant any substantial deliberation. Even though aspirations of a socialist state were routinely floated at the time of independence, the same did not find any explicit mention in the Indian Constitution. Arguably, Part III and Part IV do embody aspects of distributive justice which are central to a socialist nation. However, with the 42nd Constitutional Amendment in 1976, along with important changes discussed later, the term ‘socialist’ found its way into the ‘key to the Constitution’. The insertion of the term ‘socialist’ into the Preamble might amount to only a formal measure, since directives such as equality of opportunity and socio-economic justice had already signalled the intent to follow a socialist pattern of development.


Part III & Part IV: Friction to Harmony

Part III of the Constitution essentially covers rights considered as vested within people. It promotes individualism and guarantees State’s abstention from interference with rights pertaining to it and incidentally forms the pillars of a free market. On the other hand, Part IV of the Constitution envisages tenets steering societal development and liberation. The focus widens from an individual to the society as a whole, and it is this contradiction between individual-centric rights and society-centric obligations that poses a great challenge while deciding upon the model of development.

Capitalism predicated on free market propagates individualism while simultaneously protecting the individual’s rights and freedom. However, if an individual who is devoid of capital wishes to participate in economic relations within an imbalanced society such as ours, a capitalist framework disproportionately leeches off his labour. As long as an individual is not directly involved in the production under capitalism, he is relatively protected and free. The foregoing is not an option as primal drives for food and shelter leave one with no option but to integrate themselves into the productive force, leading to their eventual exploitation. The social relations within a capitalist system might seem free from coercion and force, but the fact that the impetus for a large portion of relations of production emanate from desperation owing to hunger or otherwise, nullify the basic supposition that capitalism is based on voluntary participation. Adding to that are two more observations. Firstly, the supposed protection over freedom and individualism is limited to only the exchange component of capitalism, and a person is devoid of all protections before and after the exchange. It is the lack of equality before economic engagement that necessitates State intervention.

Secondly, the fact that opportunities for participation are increasingly shrinking, a mode of development that runs on the basis of laissez-faire would not be a good idea. In other capitalist nations, the best government is one that interferes the least. However, as mentioned earlier, the nation being born out of a struggle for political, economic and social struggle, mandates the state to ensure political, economic and social liberation. Now the question arises as to what can be considered as economic liberation of Indians? Is it limited to a definition which prescribes a State to prevent violent interference with economic activity of people, without any heed to their capability of participation? Surely this seems like a parochial view of the Constitutional mandate. By forsaking a bunch of rights and liberties, we have entered into a contract with the State. It is only natural that the State brings to the bargain a more wholesome consideration, which arguably includes features of welfarism and socialistic tendencies.

Part IV of the Constitution which entails mandates for the State to eventually realise largely revolve around social and economic justice. Prior attempts by the State to act in pursuance of Part IV have been met by numerous hurdles and judicial opposition. However, owing to maturation of judicial opinion, the relationship between Part III and Part IV rights eventually developed into a symbiotic one whereby each informed the other. Initially, directives under Part IV were held to be subservient to Part III rights (State of Madras v. Champakam Dorairajan) . The judicial stance later transformed into a more practical one, holding that neither Part III nor Part IV enjoy supremacy over the other, and the State should keep in mind the needs of both the individual as well the society while fulfilling its functions (Minerva Mills Ltd. and Ors. vs. Union of India). Over time, with no signs of growing parity between sections of the society, Part IV of the Constitution was allowed limited reign over Part III rights. With the enactment of the 42nd Amendment came the insertion of Article 31C, providing immunity to State actions in pursuance of Part IV directives that might hamper certain rights under Part III (Art. 14 & 19).

Part III rights, though dear to vast sections of the society in their quest for economic enterprise, are fruitless for an even greater portion of the population. Ideological goals set out in Part III, such as liberty and individualism, are impotent if people do not have the means to express the same. On the contrary, socio-economic goals are more pressing and urgent, since they help combat inequality of opportunity. Accordingly, in certain contexts, fundamental rights vested within individuals must yield to more practical needs of the society as a whole (with taxation being an explicit example). To bestow ideological rights and even opportunities upon people without equipping them with the right tools to take on such opportunities is akin to “[Telling] an unprovisioned man lost in the desert that he is free to eat, drink, bathe, read…”(Kesavananda Bharati v. State of Kerala).


Other sources of Constitutional Vision

Another source to help determine the developmental direction the State should adopt in accordance with the Constitution are the objectives set out in early Planning Commission five-year plans. Initial five-year plan objectives had indicated their preference for the State to advance not keeping in mind private profit, but social gain. Also, the pattern of development must not only ensure national development, but also greater equality in wealth.[4] The State should also make an active effort in expanding Public Sector Units (‘PSU’), along with increasing investments either directly or by way of attracting private investments in industry. While the State has ensured a conducive climate for investments by repeatedly jumping ranks in ease of doing business and so on, it has failed incredulously in upholding the corollary, i.e., increasing the scope of PSUs.[5]

Switching of Constitutional vision and State aspirations

As can be inferred from the foregoing, the Constitutional attitude (as interpreted by the judiciary) towards distributive justice and socialist thinking has ripened over time. It started off as a champion and guardian of individualism to eventually move on to place greater emphasis on egalitarian concerns. Presently, it has involved itself in social justice by way of striking down of §377, allowing women of all ages into Sabarimala temple, decriminalising of begging and so on.

However, the State, which initially began with benevolent aspirations (such as land redistribution) has eventually shed the same in exchange for economic growth and prosperity. By making the economic aspect of growth supreme the State has adopted a myopic attitude, resulting in the State disregarding the rights of various sections of the society. Can a pattern of growth that leads to increasing stratification of the society be considered as development? While we cherish our economic prowess at the global front, fulfilment of basic needs of the public that should naturally correspond with economic development seem to be lacking. With 14.5% of our population suffering from acute starvation,[6] 56% of our population not having access to clean toilets[7] and access to proportional healthcare continuously dwindling,[8] the emphasis on economic component of development as compared to distributive development is readily visible.


Conclusion

In the initial journey for political liberation, the other two freedoms, i.e. social and economic, were relatively side-lined. The State had realised that forces such as Sanskritization and other bottom-up approaches, liberalisation and alike, will not truly lead us to the societal setup we desire, and without the State rigorously involving itself in this aspect, caste-hierarchies in India are only bound to further concretise. The Constitutional model of development has been explicitly expressed in the Preamble, and what remains to be seen is how a socialist nation is eventually realised. The Constitution also mandates distributive justice and welfarism, however, judicial interpretation, which is an important arm of the Constitution, was not always in favour of this. On the other hand, State actions and aspirations were predominantly pillared on notions of equality and distribution of wealth. Though it is commendable to witness judicial maturation in this aspect, it is painful to see how the State in all its capacity has slowly, but steadily, strayed away from not only its initial ambitions, but the Constitutional mandate as a whole. As privileged sections of the society will not be a party to its own liquidation, what remains to be seen is how the State can achieve this goal with the least intervention possible. Or is it that the power of domestic and global capital will always overpower lukewarm political will? If the foregoing prognosis holds true, the only path that remains is for social consciousness to develop to a point whereby the sections of society having control over the means of production will no longer be able to exploit the weaker sections.

[1] Though the Judiciary is an organ of the State, this essay bases the conception of State as per Article 14, which excludes judicial functions of the judiciary.

[2] Due to the extensive nature of the debates, the views of only select CAD members have been put forth.

[3] XI. Constitutional Assembly Debates, Nov. 25, 1949, p. 972

[4] Approach to the Second Five Year Plan, Chapter 2, Planning Commission

[5] The government is set on achieving an enhanced target of Rs, 1,05,000 crore of disinvestment of Centrally owned Public Sector Enterprise for the financial year 2019-20. See Budget 2019-2020 Speech of Nirmala Sitharaman Minister of Finance July 5, 2019 ¶100

[6] India ranks 103 out of a selected 119 nations. See Global Hunger Index, 2018.

[7] WaterAid UK, Out of Order – The State of the World’s Toilets 2017

[8] India went from 0.8 hospital beds per 1000 people in 1980, to 0.7 in 2011. See The State of Food Security and Nutrition in the World 2019


Abishek is pursuing his Masters in Public Policy at NLSIU, Bengaluru.

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